AMITY UNIVERSITY GWALIOR, MADHYA

PRADESH, (AUMP)

ASSIGNMENT
OF
INTERNATIONAL ENVIRONMENTAL LAW
BAL - 805

SUBMITTED TO: SUBMITTED BY:

SHILPI YADAV ANSHIKA JAIN
ASSISTANT PROFESSOR SHREYA KAUL
ALS- AUMP BA. LLB. H. / VIII - SEM
ALS- AUMP

1
 TABLE OF CONTENTS

1. Abstract……………………………………………………………………………. 03
2. Introduction…………………………………………………………………………04
3. Constitutional and Legislative Mandate……………………………………………………5-9
4. Judicial Involvement……………………………………………………………………….10-13
5. Enforcement of Laws……………………………………………………………….14
6. Conclusion………………………………………………………………………….15
7. Bibliography………………………………………………………………………..16

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Law Of Environment In India: Problems And Challenges In Its Enforcement

LAW OF ENVIRONMENT IN INDIA: PROBLEMS AND CHALLENGES

IN ITS ENFORCEMENT

Abstract

There is no deficiency of available legislations on environmental protection in India but

enforcement of these legislations has been far from satisfactory. There is urgent need for
the effective, successful and well–organized enforcement of the Constitutional mandate
and other environmental legislations or laws in India. The creative and innovative role
of India Judiciary and National Green Tribunal [NGT] has been significant and laudable
in this era. Pursuant to the provisions contained in Articles 48–A and 51–A[h] of the
Indian Constitution, various Public Interest Litigations have been instituted in the
Supreme Court against several industries for failing to provide sufficient pollution
control and also against Pollution Control Boards to direct them to take proper measures
to ensure pollution control in Indian perspective. For the purpose of effective, successful
and well–organized enforcement of these legislations, it is required to set up an
Adjucatory Body in each State in India, which should consist of legal as well as
technical experts. Caring for regulating and protecting the environment is essentially a
desire to see that national development should proceed along the rational sustainable
laws. Protection of the environment and keeping ecological balance in Indian scenario
unaffected is a task which not only the Government but also every individual,
association, society, industry and corporation must undertake. It is a social compulsion
and fundamental duty enshrined in Article 51–A[g] of the Indian Constitution.

Keywords: Environmental Protection, Air Pollution, Water Pollution, Public Interest

Litigation, Constitution of India, National Green Tribunal and Judiciary.

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Law Of Environment In India: Problems And Challenges In Its Enforcement

1. Introduction

Nowadays, the protection, conservation and improvement of environment are main and
major issues or problems in India and as well as all over the world. The term
environment includes of both physical environment and biological or ecological
environment. The physical environment includes issues relating to land, water and air
and the other hand biological environment includes issues relating to plants, animals and
other organisms. Both physical and biological environment are mutually dependent and
connected each other. The major factor in India like Industrialization, urbanization,
explosion of population, over– exploitation of natural resources, disruption of natural
ecological balances, destruction of a multitude of animal and plant species for economic
reasons, which have contributed to environmental worsening. Thus, it is true that, one
country’s deprivation of environment degrades the global environment for all the
countries1 in the world. The problem of environmental pollution is of international level
and India is no exception to it.

In this present paper, an effort has been made to momentarily outline the various Indian
legislations relating to the environment, which are mainly and more relevant to protect
and improve the environment in India. The enforcement of these legislations has also
been critically examined and evaluated in systematically manner. Lastly, some
suggestions also have been provided by the author.

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Law Of Environment In India: Problems And Challenges In Its Enforcement

2. Constitutional and Legislative Mandate

The Stockholm Declaration of 1972 was the first major effort to conserve and protect
the human environment at the international level. As a result of this Declaration, the
States were required to approve legislative mandates to protect and improve the
environment in the concerned State. Consequently, for that reason Indian Parliament
inserted two Articles, i.e., 48–A and 51–A in the Indian Constitution in 1976. 2 Article
48–A of the Constitution rightly directs that the State shall endeavour to protect and
improve the environment and safeguard forests and wildlife of the country. In the same
way, Clause [g] of Article 51– A imposes a duty on every citizen of India, to protect and
improve the natural environment including forests, lakes, river, and wildlife and to have
compassion for living creatures.

With the collective effect of Articles 48–A and 51–A [g] it appears that the „State‟ as
well as the „citizen‟ are now under constitutional responsibility for the protection,
experience and improvement of the environmental situations of India. Every generation
owes a duty to all succeeding generations to develop and conserve the natural and
original resources of India in the superlative possible way. The phrase protects and
improves‟ appearing in both Articles 48–A and 51–A[g] seems to reflect an affirmative
Government action to improve the quality of the environment and not just to preserve
the environment in its polluted form.

Apart from the constitutional mandate to protect and improve the environmental
conditions, there are a series of legislations available on the subject but more relevant
legislations for our purpose are the Forest [Conservation] Act, 1980; the Water
[Prevention and Control of Pollution] Act, 1974; the Wildlife [Protection] Act, 1972;
the Environment [Protection] Act, 1986; the Air [Prevention and Control of Pollution]
Act, 1981; the National Environment Tribunal Act, 1995; the National Green
Tribunal Act, 2010; the Biological Diversity Act, 2002 and the Hazardous Wastes
[Management and Handling] Amendment Rules, 2003 etc.

1
Divan Shyam and Martha L. Noble [1991], Environmental Law and Policy in India, M.N. Tripathi Pvt. Ltd., Bombay, at p. 25.
2
These Articles Inserted by the Constitution [42nd Amendment] Act, 1976.
3
The Indian Forest Act, 1927; the Factories Act, 1948 and the Atomic Energy Act,

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Law Of Environment In India: Problems And Challenges In Its Enforcement

The Water [Prevention and Control of Pollution] Act, 1974 provides for the prevention
and control of water pollution and the maintaining or resorting of the integrity of water.
This Act prohibits any poisonous, noxious or polluting material from entering into any
source, stream or well. This Act provides for the formation of Central Pollution Control
Board in Center and the State Pollution Control Board in State. It is mandatory that new

industries are required to obtain prior approval of such Boards before discharging any
trade waste matter, sewages into sources of water. No person shall, without the prior
consent of the Board, use a new or altered outlet for the discharge of sewage or trade
waste into any stream or well or sewer or land. The consent of the Boards shall also be
required for continuing an existing discharge of sewage or trade waste matter into a
stream or well or sewer or land.

In the Ganga Water Pollution case,4 the owners of some tanneries near Kanpur were
discharging their trade waste matter from their industries in the Ganga River without
setting up primary treatment plants. The Apex Court said that the financial capacity of
tannery factories should be treated as irrelevant when they are required to set up first aid
plants. The Court directed to stop the running of these tanneries and also not to let out
trade waste matter from the tanneries either directly or indirectly into the Ganga river
without subjecting the trade waste matter to a permanent process by setting up primary
treatment plants as approved by the State Pollution Control Board.

The Water [Prevention and Control of Pollution] Cess Act, 1977 aims to provide levy
and collection of a cess on water consumed by persons carrying certain industries,
factories and local authorities to boost the resources of the Central Board and the State
Boards constituted for the prevention and control of water pollution. The object is to
realize money from those whose actions lead to pollution and who must bear the
expenses of the maintaining and running of such Boards. The industries and factories
may obtain a rebate as to the extent of 25 percent if they set up treatment plant of
sewage or trade waste matter or effluent.

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Law Of Environment In India: Problems And Challenges In Its Enforcement

The Air [Prevention and Control of Pollution] Act, 1981 has been designed to prevent,
control and abatement of air pollution in the climate. The main sources of air pollution
are industries, factories, automobiles, domestic fires and vehicles etc. The air pollution
adversely affects heart and lung and reacts with hemoglobin in the blood and air
pollution also causes dangerous disease like asthama and mental tension which leads to
increase crimes in the society. This Air Act defines an air pollutant as any solid, liquid
or gaseous substance having noise present in the atmosphere in such concentrations as
may be harmful to human beings or other living beings or plants or property or the
environment. The Act provides that no person shall establish or operate any industrial
plant in an air pollution control area without the prior consent of the State Board.

The Central Pollution Control Board and State Pollution Control Board constituted
under the Water Act will also have powers and functions under the Air Act. The main
and important function of the Boards under the Air Act is to improve the quality of air
and to prevent, control and abate air pollution in the territory of country. The consent
granted by such Board may be provisional in respect of the growing of the height of the
stack and the provision of various control equipment and monitoring equipment. It is
expressly provided that persons carrying on industry and factory shall not allow
emission of air pollutant in excess of standards laid down by such Board.

In Delhi, the public transport system including buses and taxies are operating on a single
fuel CNG mode on the directions5 given by the Supreme Court. Primarily, there was a
lot of opposition from bus and taxi operators. But now they themselves realize that the
use of CNG is not only environment friendly but also economical. But the latest Delhi
Government passed an order for „odd and even formula‟ to the Delhi Transport
Authority on the directions given by the National Green Tribunal. According to this
formula one day fixed for vehicle have odd number and next day fixed for vehicle have
even number. Noise has been taken as air pollutant within the meaning of Air Act.
Sound becomes noise when it causes annoyance or irritates or cross the standard decibel
limits. There are many sources of noise pollution like factories, vehicles, reckless use of
loudspeakers in marriages, religious ceremonies, religious places, etc.

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Law Of Environment In India: Problems And Challenges In Its Enforcement

Use of crackers on festivals, winning of teams in the games, and other such occasions
causes not only noise pollution but also air pollution both. This Air Act prevents and
controls both these pollutions.

The Environment [Protection] Act, 1986 was enacted to provide for the protection and
improvement of the quality of environment and preventing, controlling and abating
environmental pollution. The Act came into existence as a direct result of the Bhopal
Gas Tragedy. The term „environment‟ refers to water, air and land, in addition to the
interrelationships that exist between water, air, land, humans, other living beings, plants,
micro–organisms and property. The given definition of environment is so broad that its
scope includes all living beings including plants and micro–organisms and their
relationship with water, air and land.

This Act has given huge powers to the Central Government to take actions with respect
of planning and execution of a nation–wide programme for prevention, control and
abatement of environmental pollution in India. It empowers the Government to lay
down principles for the regulate industrial locations, prescribe procedure for managing
hazardous substances, quality of environment, establish safeguards for preventing
accidents, emission or discharge of environmental pollutants and to collect and
disseminate information regarding environmental pollution etc. Any infringement of the
provisions of this Act, rules, orders or directions made there under is punishable with
imprisonment for a term which may extend to five years or with fine up to one lakh
rupees or with both. This Act is an umbrella legislation designed to present a frame
work for Central Government bringing together of the activities of various Central and
State authorities established under previous laws like the Water Act and the Air Act.

The National Environment Tribunal Act, 1995 was conceded to provide for strict
obligation for compensations produced by any accident that happens while behavior any
dangerous material in factories. This Act provides for establishment of a National
Environment Tribunal for effective, speedy and expeditious disposal of cases arising
from such accident.

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 Law Of Environment In India: Problems And Challenges In Its Enforcement

This imposes legal liability on the owner of an enterprise to pay damages or

compensation in case of death or injury to any person; or harm to any property or
environment resulted from an accident but the accident must have occurred while
handling any hazardous substance. A claimant may also make an application before the
National Environment Tribunal for such relief.

The National Environment Appellate Authority Act, 1997 has been passed to provide
for the establishment of a National Environment Appellate Authority to hear appeals
with respect to restriction of areas in which any industries, factories, operations or
processes shall not be carried out or shall be carried out subject to certain protections
under the Environment [Protection] Act, 1986. After the establishment of this
Authority, no Civil Court or other authority shall have jurisdiction to entertain an appeal
on matters of environment on which the Authority is so empowered under this Act. It
is obvious that this Act has been made with intention to provide speedy justice on
environmental issues and problems in India.

The Wildlife [Protection] Act, 1972 was passed with a view to provide for the
protection of wild animals, plants and birds. This Act prohibits hunting of birds and
animals as specified in the schedules of this Act. This Act also prohibits damaging,
uprooting, picking, destroying etc. any specified plant from any forest. This Act is
administered by a Director of Wildlife Preservation with Assistant Directors and a Chief
Wildlife Warden with other Wardens and their staff. This Act provides for State
Wildlife Advisory Board to advise the State Government in formulation of the policy for
protection and conservation of the wildlife and specified plants and in assortment of
zones to be declared as Sanctuaries, National parks, etc.

4
Bhavani River v. Sakthi Sugar Limited AIR 1998 SC 2059.
5
M.C. Mehta v. Union of India AIR 1998 SC 2963.

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Law Of Environment In India: Problems And Challenges In Its Enforcement

3. Judicial Involvement
The fundamental right of a person or citizen of India, to pollution free environment is a
part of basic jurisprudence of the land. Article 21 of the Indian Constitution guarantees a
fundamental right to life and personal liberty and the Supreme Court has interpreted the
right to life and personal liberty to include the right to natural, clean and healthy7
environment. The Supreme Court through its various landmark8 judgments in the field
of environment have held that the mandate of right to life includes right to clean and
healthy environment, drinking–water and pollution–free atmosphere.

In this view Sri Ram Food and Fertilizer case9 is an important case. In this case a major
leakage of Oileum Gas in Bhopal affected a large number of persons, both amongst the
workmen and public.

The Apex Court held that where an enterprise involves in hazardous or inherently
dangerous activity and in the conduct of such dangerous and inherently dangerous
activity causes harm to anyone by accident resulting in the release of poisonous gas, the
enterprise shall strictly and is solely accountable for paying recompense to all those
affected by the accident and such liability is not subject to any exemption. Such liability
called the „absolute liability‟.

This case is related to the Taj Mahal situated in Agra. In Taj Mahal‟s case, 10 the Apex
Court issued directions and guidelines that coal and coke–based industries or factories in
Taj Trapezium [TTZ] which were damaging Taj Mahal should either modify over to
natural gas or to be replaced or relocated outside Taj Trapezium. Again, the Apex Court
directed to protect the plants planted around Taj Mahal by the Forest Department. The
Divisional Forest Officer [DFO], Agra is directed to take instant steps for seeing that
water is supplied to the plants. The Union Government is directed to release the funds
without delay and without waiting for receipt of the proposal from the Uttar Pradesh
Government on the basis of the copy of the report. Funding may be afterward settled
with the Uttar Pradesh Government, but in any set of conditions for want of funds the
officer is directed to see that plants do not wither away.

6
Anupama Minerals v. Union of India and Ors AIR 1986 AP 225.
7
Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh AIR 1988 SC 1037.
8
Subhash Kumar v. State of Bihar AIR 1991 SC 420; M.C. Mehta v. Union of India AIR 2000 SC 1997.
9
M.C. Mehta v. Union of India AIR 1987 SC 1086.

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Law Of Environment In India: Problems And Challenges In Its Enforcement

In the present context smoking in public places is an offence in India. In 2001, the
Supreme Court imposed ban on smoking of tobacco 11 [biri, cigarette] in public places all
over the country because smoking causes harm not only to the smokers then too to non–
smokers who are enforced to inhale the second–hand smoke. More than 3 million people
die per year in India as a result of smoking tobacco including bidis, cigar and cigarettes.
One lakh Indians get lung cancer per year due to smoking. Certainly, lung cancer kills
95 percent of its victims. That is why the Apex Court ruling has immense social and
cultural value. But no one cares for this ban. We know that the cigarettes, bidis and
other tobacco items are openly sold in tobacco–free railway stations, bus stands, cinema
houses and other public places. So, it is the great social awakening which can only help
us to prevent dangerous smoking.

In the Dehradun Valley case,12 haphazard and dangerous limestone quarrying in the
Mussoorie Mountain range of the Himalayas, dynamite eroding hills, and thousands of
acres of limestone quarries disrupted the valley‟s hydrological system. The Apex Court
ordered the closing of limestone quarrying in the hills and observed:
“It will undoubtedly cause hardship to them, but it is a value that has to be
compensated for protecting and protecting people‟s right to live in a clean and healthy
environment with minimal disturbance of the ecological balance.”

The Apex Court has highlighted the importance of protection of public health. In Subba
Rao v. State of Himachal Pradesh,13 the Apex Court ordered the shutting down of a bone
factory which was polluting the environment by its sharp smell and making the life of
the people unhappy. The Court held that no one can do business at the cost of public
health. With a view to preserve and protect the environment and control pollution within
the vicinity of tourist resorts of Badkhal and Surajkund, the Supreme Count directed 14
the stoppage of mining activity within two Kilometers radius of these two tourist resorts.
In Municipal Council, Ratlam v. Vardhichand and Ors, 15 the Supreme Court observed
that the grievous failure of local authorities to provide the basic amenity of public
conveniences drives the depressed slum– dwellers to ease in the streets, on the sly for a
time and openly thereafter, because under nature‟s pressure, bashfulness becomes a
luxury and dignity a difficult art.
10
M.C. Mehta v. Union of India AIR 1999 SC 3192; See also, M.C. Mehta v. Union of India [2001] 9 SCC 520.
11
Murli S. Deora v. Union of India [2001] 3 SCC 765.
12
Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh AIR 1985 SC 652.
13
AIR 1989 SC 171.
14
M.C. Mehta v. Union of India [1996] 4 SCC 351.
15
AIR 1980 SC 1622.

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Law Of Environment In India: Problems And Challenges In Its Enforcement

A responsible city council constituted for the purpose of protecting public health cannot
shirk its duty by pleading financial incompetence.

In Almitra H. Patel v. Union of India, 16 the Supreme Court reiterated the observations
made in Wadehra’s case:17
“The capital of India, Delhi is an old and well–known city which is one of the polluted
cities in the world. The authorities and government are responsible for pollution control
and environmental protection is not able to provide natural clean and healthy
environment to the residents of Delhi. The ambient air is so polluted that it is difficult
for humans to breathe. More and more people are suffering from respiratory diseases
and throat infections. The Yamuna River, the main source of drinking water supply, is a
free dumping place for untreated sewerage and industrial effluents. Apart from air and
water pollution, the city is almost an open dustbin. Garbage scattered all over Delhi is
a common sight.”

The Supreme Court directed the authorities to take immediate necessary steps to control
pollution and protect the environment. “Sustainable development‟ means development
that meets the needs of the present without negotiating on the capacity or skills of
upcoming generations to see their own needs or desires. In the case of Vellore Citizens
Welfare Forum v. Union of India,18 the Apex Court elaborately discussed the
theory of “sustainable development‟ which has been accepted as part of the law of the
land in India. The protective principle and the polluter-pay principle are fundamental
features of sustainable development. The “precautionary principle‟ makes it
mandatory19 for the state government to anticipate the causes of environmental
degradation to prevent and attack them. The Apex Court observed that:
“Now we have no hesitation to believe that in order to save the two lakes i.e., Badhkal
and Surajkund from environmental degradation, it has become necessary to completely
stop the construction activity around the lakes.”

The “polluter pays principle‟ that the financial cost of preventing damage caused by
pollution or treatment should be with those enterprises that cause pollution. The polluter
pays theory has been recognized as a sound principle and, as interpreted by the Apex
Court, means not only to compensate the victims of pollution but also to restore the
environment, absolute liability for damages also increases the cost.

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Law Of Environment In India: Problems And Challenges In Its Enforcement

Remediation of the injured environment is part of the process of sustainable

development and thus the polluter is liable to pay the cost to separate victims as well as
the cost of reversing the damaged ecosystem.
The above study of these cases clearly shows that the Supreme Court has played a very
important role for the protection and improvement of the environmental situation in
India. The jurisdiction of the Court has been further expanded through Public Interest
Litigation. The creative and inventive role of the judiciary is significant and
praiseworthy.

16
AIR 2000 SC 1256.
17
B.L. Wadehra v. Union of India AIR 1996 SC 2969.
18
AIR 1996 SC 2715.
19 M.C. Mehta v. Union of India [1997] 1 Camp L.J. 199 [SC].

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Law Of Environment In India: Problems And Challenges In Its Enforcement

4. Enforcement of Laws
We have noticed that in the past few years there is an increasing trend to the number of
cases relating to the environmental pollution, ecological destruction and conflicts over
natural resources coming up before the Courts. In most of these cases there is need for
Environment Court and natural scientific expertise as an essential input to inform
judicial decision–making. These cases need expertise at a high level of scientific and
technical superiority.

The experience shows that the prosecution launched in ordinary Criminal Courts under
the provisions of the Water Act, the Air Act and the Environment [Protection] Act
never reach their conclusion either because of the work load in these Courts or because
there is no proper appreciation of the significance of the environment matters on the part
of those in charge of conducting of those cases. Moreover, any orders approved by the
authorities under the Water Act, the Air Act and the Environment [Protection] Act
are instantly questioned by the industries in the Courts. Those procedures take years and
years to reach conclusion.

Many a times interim orders are passed in the meantime which effectively disables the
officers from ensuring the implementation of their orders. Therefore, it is absolutely
essential to set up more separate machinery like National Green Tribunal to cut down
the delays which are hindering the implementation of environmental laws. Moreover,
judicial officers alone may not be able to appreciate the logical and technical aspects. It
is, therefore, submitted that the provisions be made for the establishment of the
Environment Courts with one judge and one expert from the ecological and other
sciences.

To begin with, we may have a two–tier system one at the State level and the other at the
National level which may later be extended even at the district level. Such Environment
Courts may be vested with the jurisdiction to decide both criminal prosecution cases
under the various environmental laws and civil cases for compensation to victims of any
activity leading to environmental spoil or pollution. The Courts should be permissible to
conduct brief proceedings for speedy disposal of cases. The decisions of State
Environment Courts can be appealed to the National Environment Court and the
decisions of the National Environment Courts can be appealed to the Supreme Court.

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Law Of Environment In India: Problems And Challenges In Its Enforcement
5. Conclusion
We have more than 200 Central and State legislations and laws which deal with
environmental issues and problems. It is true that more laws mean more difficulties in
enforcement. So, there is a need to have a complete and integrated law on
environmental protection for meaningful enforcement in India. But it is not enough to
pass the legislations. A positive approach on the part of everyone in society is essential
for effective, speedy and efficient enforcement of these legislations. The Environment
Protection Laws have failed to bring about the desired results. Consequently, for the
purpose of efficient and effective enforcement of these laws, it is necessary to set up the
Environment Courts; with one Judge and two technical experts from the field of
Environmental Science and Ecology. These Courts should be allowed to adopt summary
proceedings for speedy disposal of the cases. Initially we may have such courts at the
state and national level which can later be extended to the district level on a need–based
principle. To discourage protracted litigation, the provisions should be restricted to a
single appeal. For strict enforcement of environmental laws, only misrepresentation and
technical flaws should be disregarded by the courts.

The jurisdiction of the Courts has been expanded by way of PIL. The Apex Court has
played an important role in directing the administrative officers from time to time to take
necessary steps to improve the environment. What we need is social awareness from
below, not law from above, no law works smoothly unless the interaction is voluntary.
In order to educate people about the environmental issues, there should be exhibition of
slides in the regional languages at cinema houses and television free of cost. Further, as
directed by the Supreme Court, environment studies shall be made a compulsory
subject at school and college levels in graded system so that there should be general
growth of awareness. Finally, protection of the environment and keeping ecological
balance unaffected is a task which not only the government but also every individual,
association and corporation must undertake. It is a social obligation and fundamental
duty enshrined in Article 51–A[g] of the Indian Constitution.
********************************

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Law Of Environment In India: Problems And Challenges In Its Enforcement

6.Bibliography

i. https://www.redalyc.org/journal/7039/703973419003/703973419003.pdf

ii. https://www.inspirajournals.com/uploads/Issues/1905396846.pdf

iii. https://www.cwejournal.org/vol18no3/pchallenges-in-implementing-environmental-laws-and-policies-in-
indiap

iv. https://www.researchgate.net/publication/
354734613_Law_Of_Environment_In_India_Problems_And_Challenges_In_Its_Enforcement

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